Citation Nr: 0104981
Decision Date: 02/16/01 Archive Date: 02/20/01
DOCKET NO. 95-06 484 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to an increased evaluation for lateral recess
stenosis of the lumbosacral spine, currently evaluated as 40
percent disabling.
2. Entitlement to an increased evaluation for sinusitis with
headaches, currently evaluated as 10 percent disabling.
3. Entitlement to an increased evaluation for degenerative
joint disease and degenerative disc disease of the cervical
spine, currently evaluated as 20 percent disabling.
4. Entitlement to an increased (compensable) evaluation for
bilateral hearing loss.
5. Entitlement to an increased (compensable) evaluation for
nasal fracture, status post-septoplasty.
6. Entitlement to an increased (compensable) evaluation for
reflux esophagitis, status post repair of hiatal hernia.
7. Entitlement to an increased (compensable) evaluation for
status post ventral hernia repair.
8. Entitlement to an increased (compensable) evaluation for
status post right inguinal hernia repair.
9. Entitlement to an increased (compensable) evaluation for
basil cell carcinoma status post excision.
10. Entitlement to special monthly compensation based on the
loss of use of a creative organ.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on verified active duty from September
1961 to July 1963 and from January 1975 to September 1989.
Any other claimed active service by the veteran as well as
prisoner of war (POW) status while serving in Vietnam is not
certified by the service department.
The Board of Veterans' Appeals (Board) notes that the issues
on appeal stem from Department of Veterans Affairs (VA)
Regional Office (RO) rating decisions dating from May 1990.
After adjudicating other issues then pending on appeal, the
Board remanded the case to the RO in February 1998 for
additional development further adjudicative actions.
While the case was in remand status, the RO in January 1999
granted service connection for bilateral pes planus and
impotency, previously certified for appeal. Since the grant
of service-connection represents a full grant of benefits
sought on appeal, they are no longer in appellate status.
Also, the RO granted an increased (compensable) evaluation of
20 percent for degenerative joint disease and degenerative
disc disease of the cervical spine. As the increased rating
does not represent the maximum benefit under the rating
schedule, such issue remains on appeal.
In January 1999 the RO denied entitlement to the separately
raised issue of entitlement to special monthly compensation
based on the loss of use of a creative organ. The veteran
filed a timely notice of disagreement with respect to the
denial of his claim. Following issuance of a statement of
the case, he filed a timely substantive appeal. Therefore
such claim is construed as part of the current appellate
review.
Importantly, the Board notes that in September 2000 the
veteran was also furnished a separate statement of the case
addressing the issues of entitlement to service connection
for periodontitis with loss of teeth numbers 3, 4, 6, 7, 8,
9, 10, 11, 13, 14, 15, 20, 23-26, 29 and 30, and an increased
evaluation for post-traumatic stress disorder (PTSD) with
dissociative disorder and somatoform pain disorder dysthymic
disorder, evaluated as 70 percent disabling. Since the
veteran did not file a substantive appeal with respect to
such claims, they are not considered part of the current
appellate review.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The Board notes that in recent correspondence received at the
Board in March 1999, the veteran requested a hearing before a
travel Member of the Board at the RO. Since the record is
absent any clear indication that the veteran is limiting the
hearing to any particular issue on appeal, the Board assumes
that it is his desire to give testimony on the issues as
noted on the title page without restriction.
It is a basic principle of veterans' law that the Board shall
decide an appeal only after affording the claimant an
opportunity for a hearing. 38 U.S.C.A. § 7107 (West 1991 &
Supp. 2000). Pursuant to 38 C.F.R. § 20.7000 (2000), a
hearing on appeal before the Board will be granted if an
appellant expresses a desire to appear in person.
To ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following action:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
2. The RO should take appropriate action
to schedule the veteran for a personal
hearing at the RO before a Member of the
Board. A copy of the notice to the
appellant of the scheduling of the
hearing should be placed in the record.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to any final
outcome warranted. The appellant need take no action until
he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).